N.O. judge sides with felon in weapons case

Editor’s note: This is the full version of an incomplete story that was inadvertently run in The Advocate on Friday.

New Orleans — A New Orleans state district judge agreed Thursday with lawyers for a man facing a weapons charge that the state statute forbidding some felons from possessing firearms runs afoul of a new provision in Louisiana’s Constitution that makes gun possession a fundamental right.

New Orleans Criminal District Court Judge Darryl Derbigny’s ruling confirms fears that Orleans Parish District Attorney Leon Cannizzaro raised last fall when he opposed a proposed constitutional amendment to strengthen the right to bear arms. Voters approved the amendment.

“It is very frustrating for us,’’ Assistant District Attorney Christopher Bowman said. “The district attorney predicted that the passing of this amendment would result in legal challenges.’’

Public defenders Jill Pasquarella and Colin Reingold challenged the constitutionality of Revised Statute 14.95.1 in several cases where defendants had been charged as felons in possession of a firearm, including Glen Draughter’s.

Draughter had previously pleaded guilty to simple burglary in 2010 and was given a suspended sentence, according to court records. He was arrested on April 18, 2012, on a weapons possession charge, according to court records.

In his ruling, Derbigny said Louisiana Revised Statute 14.95.1 “applies without discretion to nearly every felony crime enumerated in the Louisiana Criminal Code.’’ It is not narrowly tailored to achieve the government’s interest, Derbigny said.

He said the court would not engage in what he called a “judicial line item veto’’ by deciding which felony convictions should be included in the statute.

The Orleans Public Defenders Office basically argued that the decision by voters to pass a constitutional amendment calling gun protection a fundamental right has created a much higher standard for any restrictions on that right. Any attempts to restrict gun ownership must face “strict scrutiny” and require an “extremely compelling reason to justify,” said Reingold, a special litigation staff attorney for the OPD.

While most laws are created using the “because we say so” standard, laws that restrict gun ownership must now use the “We say so because” standard and include proof, he said.

“In layman’s terms, they have to have a really good reason and there has to be some compelling evidence,” said Reingold, noting that the normal standard is for laws to be reasonable and legitimate.

“Those words don’t necessarily sound like they are far apart, but they are extremely far apart,” he said.

Reingold said public defenders didn’t discuss the impact of the amendment prior to its passage, but as soon as it was approved began formulating defense strategies to take advantage of it. Part of that decision was guidedby Cannizzaro’s concerns about the amendment that were expressed prior to the election, he said.

Challenging the current gun law is sound legal strategy, Reingold said, and public defenders would be failing their clients if they failed to make such arguments. He said it is the office’s plan to make that argument in every gun possession case that Cannizzaro’s office brings forward.

“It is our obligation to make sure all criminal laws are applied fairly and justly to our clients,” he said. “We will be challenging the statute. We have been and we will continue to challenge the statute.”

Reingold said the OPD will develop arguments to present to the state Supreme Court but isn’t sure when the case will be heard. Those arguments will focus on the idea that the Supreme Court should either invalidate the state’s law regarding gun possession by felons or establish restrictions on how the law can applied, Reingold said.

Bowman said that prosecutors will have to take time away from handling rapes, murders and shootings to defend Louisiana’s Constitution.

Bowman acknowledged that gun possession charges are among the most common in the criminal justice system. Both federal and local prosecutors often use those charges to put repeat offenders behind bars for long periods of time. Bowman said the ruling won’t affect how the District Attorney’s Office proceeds with cases in other divisions.

“We have pending cases under this statute in every division of criminal district court. and we will continue to prosecute those cases,” he said.

Cannizzaro’s office has asked the Supreme Court to issue a stay on the enforcement of Derbigny’s ruling until justices make a decision in the case.

Bowman said this is a prime example of unintended consequences. “I doubt that most people, when they were voting on this amendment, believed that this would be the outcome,” he said.